Genesis and Development of Bail in India

Introduction:

The word ‘bail’ is derived from the old French word bailer, which means nothing but to give or deliver. The term bail usually refers to releasing of a person who is charged with an offense, only when he provides the security that will ensure his presence before the courts or any authorities whenever required. The Apex Court in the landmark judgment of Sunil Fulchand Shah v. Union of India 2000, defined the term bail as “Bail is security obtained from a person arrested regarding an offense for the purpose of securing his presence during the course of trial.”

A country’s criminal law system can be termed as ideal only when the legal code strikes a balance between protecting the rights of individuals and protecting the rights of the offenders because nonetheless, they also have the same basic rights provided to every citizen of the nation. There are many provisions included in criminal jurisprudence with the sole objective of maintaining peace and harmony in society. The provision of bail is one of them, but one can see that this provision has off-lately gained more criticism than an appraisal.

Very recently, in the INX Media case, the ex-minister, P. Chidambaram was granted bail by the Supreme Court Bench of Justices R. Banumathi, S. Bopanna, and H. Roya. Justice Bopanna remarked that “bail is rule, refusal is exception”. This is the same rule practiced when granting bail because the refusal of bail is denying a person’s fundamental right recognized by Article 19, 21, and 22, wherein Article 19 provides protection of certain rights regarding freedom of speech, etc, Article 21 talks about protection of personal life and liberty, and also states that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 22 lays down certain provisions regarding the protection of an individual against arrest and detention.  

Historic Development

The advent of colonial rule in India by the Britishers saw a gradual change in the administration of the country and the concept of bail was introduced. The East India Company gradually laid control on the Nizamat Adalats and the other Fouzdary courts because of which the English criminal law laid an upper hand on the procedure of the then Indian legal system. During that time, the criminal procedure used two methods to release the person from the custody namely, zamanat and muchalka. Muchalka was an obligatory declaration in writing, usually taken by the inferiors as an act of compulsion. Zamanat was another form of judicial release in which the zamin (surety) became answerable for the accused based on a written deed deposited by the offender with the trying court.

Nonetheless, the structure and substance of the British establishment of bail were legally translated by the Code of Criminal Procedure in 1861, trailed by its re-institution in 1872 and 1898 separately. In the changed setting of an autonomous Republican India, overseers of law and equity are ordered to work in a way that the sacred harmony between the “freedom of person” and the “interests of social order” are looked after successfully.

For the working of a smooth society and to maintain harmony amongst individuals, streamlining and updating of the then laws are required. As an essential end product to the abovementioned, the Law Commission of India coordinated its consideration towards the current procedural code and arrangements overseeing the arrangement of bail.

Bail under The Criminal Procedure Code, 1973

The Code of Criminal Procedure does not define bail, although CrPC of 1898 and 1973 have defined the expression of a bailable offense and non-bailable offense.

The bailable offense is defined under section 2(a) and it means that bailable offenses are those offenses or crimes that are not very serious in nature. In such cases, bail is the offender’s right and the arrested person must be released after depositing the bail with the police. The police have the power to grant bail in these types of cases. Some of the common bailable offenses are hurt, bribery, public nuisance, death by rash or negligent act, all defined in the Indian Penal Code under section 337, 171E, 290, and 304A respectively. The Apex Court in the case of Rasik Lal v. Kishore 2009, held that if under any circumstances a person is arrested for a bailable offense, it is his right to claim bail which is absolute and also the court or the police are bound to release him.

On the other hand, in the case of a Non – bailable offense, the accused does not have the absolute right to be granted bail, but the same may be granted to him as and when decided by the court, subject to certain conditions laid down under section 437 of the CrPC. In the case of Talab Haji Hussain v. Madhukar Purshottam Mondkar AIR 1958, the Supreme Court held that grant of bail in non-bailable cases is generally a matter in the discretion of the authorities in question.

 However, the following categories of individuals may be granted bail even if a non-bailable offense has been committed by them.

• A person under the age of 16 years.
• A woman
• A sick or infirm person.

Law Commission of India Reports

• Law Commission – 41^st Report

The Law Commission after reviewing the position of the entire legal system made its recommendations to the Parliament in its 41^st report, to replace the earlier followed code of criminal procedure. The Law Commission came up to preserve the broad principles regarding bail and also suggested adjustments in the operational aspect. According to the Law Commission, the broad principles regarding bail were-

1. In the case of a bailable offense, bail is a matter of right.
2. In the case of a non-bailable offense, bail is a matter of discretion.
3. Bail is not to be granted if the offense is punishable with death or imprisonment for life, but the court has discretion in limited cases to grant bail.

• Law Commission – 48^th Report

Anticipatory Bail: Para 31 of the 48th law commission talked about in short on the bill suggested by the 41st law commission report. It talked about the arrangement of award of anticipatory bail. The current commission concurred with the expansion of the arrangements in the bill, yet included that the force ought to be practiced in extremely outstanding cases. Further, the commission was of the view that to guarantee that the arrangement of anticipatory bail isn’t put to maltreatment at the example of corrupt candidates, the last request ought to be made simply after the notification of the public prosecutor. The initial order should only be an interim one.

• Law Commission – 154^th Report

Chapter VI of the 154th Law Commission Report dealt again with the issue of bail, anticipatory bail, and allied issues like sureties. The bill talked about the debate between the two very conflicting interests, one being protecting the society at a large from people committing a crime and the other being the fundamental principle of criminal jurisprudence, i.e., the presumption of the accused to be innocent until proven guilty.

 Another important question that arose in the bill was that ‘does the bail system discriminate against the poor? as poverty is one of the several problems faced by our country, as almost 88 million people of our country live below the poverty line. The commission discussed as to how the bail framework causes the victimization of the poor since the poor would not have the option to furnish bail because of the lack of money while the wealthier people in any case likewise arrange would have the option to make sure about their opportunity since they can stand to outfit bail. This separation emerges regardless of whether the measure of bail is fixed by the officer isn’t high, for a vast greater part of the individuals who are brought under the steady gaze of the Courts in criminal cases are poor to the point that they would think that it is hard to outfit bail even in a modest quantity.

• Law Commission – 203^rd Report

Introduction of Anticipatory Bail: This Report dealt with Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005. Section 438, CrPC lays down the provision of the anticipatory bail. The concept of anticipatory bail was finally introduced in this report. As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before the arrest is made. But it is to note that only the Apex Court and High Courts have the discretion to grant the anticipatory bail.

The report stated, “The need for allowing anticipatory bail emerges for the most part because occasionally influential people attempt to ensnare their adversaries in bogus cases to disfavor them or for different purposes by getting them kept in prison for a certain day, apart from bogus cases, where there is the sensible reason for holding that an individual blamed for an offense isn’t probably going to slip off, or in any case abuse his freedom while on bail, there appears to be no avocation to require him first to submit to authority, stay in jail for certain days and afterward apply for bail.”

The anticipatory bail can only be granted with the following conditions:

1. The person shall not leave India without the permission of the authorities.
2. The person shall make himself available for interrogation as and when required.
3. The person shall not threaten or induce any person who is likely to disclose facts about the case to the court or the police officers.

Conclusion

Insurance of freedom and nobility of individuals is of the most extreme significance and courts should either allow or decline bail by remembering the estimations of correspondence, great inner voice, and equity. The bail law should be patched up with more grounded and compelling changes. Also, the bail systems for the financially minimized segment of the general public must be conveyed without delay and many formalities, the failure of which would some way or another outcome in blatant infringement of their fundamental rights.